Jersey Unreported Judgments

Superior Number Sentencing - drugs - importation - Class A.

[2014]JRC216

Royal Court

(Samedi)

10 November 2014

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Nicolle, Crill, Tibbo, Morgan and Le Cornu

The Attorney General

-v-

Vittoriano Sousa Gomes

Sentencing by the Superior Number of the Royal Court, following a guilty plea to the following charge:

1 count of:

Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999 (Count 1).

Age:  40.

Plea: Guilty.

Details of Offence:

31.8 grams of heroin arrived at Postal Headquarters, was intercepted by customs and a dummy package was made up and delivered to an address in town.  Mr Gomes arranged for a work colleague to collect the package (it was her address) and take it to him at work at Durrell.  He was seen to meet the colleague at the car park and walk back to the Dodo Café.  By the time officers got there, after a very short delay when they had to use the public entrance, the package had been unwrapped and the wrappings discarded, but the substitute drugs were not found.  The Crown had no information as to what the intention was in relation to onward supply.  He was sentenced on the basis that he was slightly more than a courier, because he had involved the work colleague. 

Details of Mitigation:

Guilty plea on first appearance.  He had done it for a favour and the drugs had been passed to a third person.  He had worked hard as a chef since his last sentence and had a good relationship with his 15 year old daughter.  Various other points in mitigation in the reports and papers before the court. 

Previous Convictions:

Notably, the defendant had one other previous conviction for importation of heroin (209g) for which he was sentenced to 6 years in 2007.  He was the organiser and financer of that importation. 

Conclusions:

Count 1:

Starting point 9 years' imprisonment.  6 years' imprisonment.

Forfeiture and destruction of drugs sought. 

Recommendation for deportation sought. 

Confiscation order hearing to be adjourned to 16^th January, 2015, at 10am. 

Sentence and Observations of Court:

Although the Crown had suggested a starting point of 9 years, the Court did not think that was high enough.  The Court felt that 10 years was more appropriate given that this was the second time that he had involved himself with drug trafficking, albeit to a lesser extent than the first time and also because it was the second time he had involved an innocent party.  (A female had been charged with this offence and indicted, but the case against her was dismissed, after a trial date had been fixed in Royal Court). 

Conclusions granted. 

Mrs R. Morley-Kirk, Crown Advocate.

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE BAILIFF:

1.        You are before the Court for importing 32 grams of heroin with a street value of up to £32,000 and you did this importation by post.  Unlike so many who come before the Court for drug trafficking offences, you are not a heroin addict yourself.  You say that on this occasion you did it to help a friend rather than to make a profit but it is not the first time you have imported heroin.  In 2007 you pleaded guilty to arranging the importation of 200 grams and were sentenced to 6 years' imprisonment (AG-v-Gomes [2007] JRC 129).  Now you are back before us again for a very similar offence. 

2.        We must consider first the starting point and the Crown has suggested that this falls within the bracket of 8-10 years because it involves between 20-50 grams, as set out in the leading case of Rimmer Lusk and Bade-v-AG 2001/148.  The Crown has suggested 9 years as a starting point.  In our judgment it should be 10 years and the reason for that is first that you have committed a very similar offence back in 2007.  The case of Harrison-v-AG [2004] JLR 111 makes it clear that if people repeat the sort of offences of which they have been convicted, they may find the starting point being increased and we wish to emphasise that people who repeat their drug trafficking activities will find a higher starting point being taken. 

3.        The second reason is that, just as last time, you involved innocent people in your plan; you procured the other woman, who was charged, to go and fetch the drugs for you when she did not know what was involved, and of course, you put her at risk because she found herself being prosecuted.  It was fortunate that the prosecution dropped the case against her but this element of calculation and the involvement of other innocent people, just as last time, is an added serious factor which, in our judgment, justifies increasing the starting point to 10 years. 

4.        But there is mitigation as Advocate Landick has said.  You pleaded guilty at an early stage and, although the evidence against you was strong, we think you should have a proper discount for that; you have a very good work record, you have been here for many years and we have read the references.  You have paid income tax; we have read your own letter and, in particular, we have read the letter from your daughter.  Thirdly, we have taken into account all the other mitigation which appears on the papers. 

5.        But, nevertheless, we think that 4 years is an adequate deduction from the starting point.  The sentence of the Court is therefore one of 6 years' imprisonment. 

6.        We order the forfeiture and destruction of the drugs. 

7.        As we say, this is your second offence for importing heroin.  We wish to repeat what we said last time we sentenced you.  In the judgment we quoted from the English case of Samaroo-v-The Secretary of State (2001) UKHRR 1150 which says as follows:-

"In my judgment the Secretary of State was entitled to regard Class A drug trafficking offences as very serious and ones that are particularly serious and harmful to society.  He was entitled to attach importance to his general policy of deporting those convicted of importation of Class A drugs in order to protect those resident in the UK from the harmful effects of drugs and by deterring others in the interests of preventing crime and disorder."

8.        As we have said on previous occasions those sentiments apply with equal force in Jersey and therefore those who involve themselves in trafficking of Class A drugs are clearly at very substantial risk of being deported and the Court would normally regard their continued presence in the Island as being detrimental.  This is your second offence, so we are in no doubt whatsoever that your continued presence is detrimental. 

9.        We turn then to consider the Convention rights of you and members of your family.  The particular matter we bear in mind is that of your daughter.  She is only 16 and it is not her fault that you are now before the Court at risk of being deported.  You have been here 23 years and your two sisters are here but your brother and parents are in Madeira.  However, the fact is that you knew you were at risk of being deported if you were to reoffend.  Last time the Court made a recommendation and you were very fortunate that in fact, despite that recommendation, you were not deported; but you must have realised that if you reoffended you would be deported.  That is what you have done and you should have thought about the damage you would do to your daughter before you committed the offence.  It is your fault that there is a recommendation for deportation, not your daughter's and not the Court's.  In our judgment deportation is entirely proportionate in this case given the fact that it is your second offence and the gravity of what was involved.  We make the recommendation for your deportation. 

Authorities

AG-v-Gomes [2007] JRC 129.

Rimmer Lusk and Bade-v-AG 2001/148.

Harrison-v-AG [2004] JLR 111.

Samaroo-v-The Secretary of State (2001) UKHRR 1150.